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Trampling People While Whistling Rights: Normative Visions, Judicial Realities in Times of Terror

18 Apr

Everybody's Got to Do Their Part

Marbury v. Madison, Miranda, and Brown v. Board of Education are hallmarks of a judicial canon that preaches a heroic vision of Constitutional Law arbitrated in our highest tribunal. These cases tell a story of the judicial process that reflects a flattering normative vision of the American government. These are the cases that may be most likely to be emphasized when a middle or high school student is first introduced to judicial review. Running concurrently alongside this set of cases is an antinomian canon, constituted of cases such as Dred Scott, Plessy v. Ferguson, and Bush v. Gore, that tells a story of the court as a political institution, embedded in the culture of its time. A particularly notable subset of these decisions occur during wartime. In cases such as Korematsu, the Supreme Court upholds dramatic, discriminatory suspensions of civil liberties that are justified on the basis of necessity, created by a perceived existential threat. Then, inevitably, the existential threat disappears, the threat that the case generated begins to seem overblown and ridiculous, the decision is dismissed as an unfortunate mistake, there’s a general sense that we’ll ‘do better next time’, and then next time comes, and the whole cycle inevitably repeats itself.  Particularly notable, in cases such as Korematsu, is our general view of WWII – a heroic time for the ‘Greatest Generation’, and our relative shame about the Korematsu decision. This bifurcation is a more complicated stance than the universal scorn that we now hold for slavery, and a representative decision of that stance, such as Dred Scott. But is there more to these judicial opinions than mere hypocricy? Continue reading

Canons of Confabulation

19 Feb

Knowles and Ditto’s article on Preference, Principle, and Causistry – detailed elsewhere on this blog – bears a striking resemblance to Karl Llewellyn’s famous critique of the use of canons of construction in judicial opinions.  Given the title of this blog, how can we not explore such a clear intersection of the mind sciences and the law?

Karl Llewellyn

Canons of construction are interpretive tools invoked by judges to discern the meaning of statutes.  To couch this in Knowles and Ditto’s terms, the universe of canons exists as a menu of principles upon which judges can draw in seeking guidance in matters of statutory interpretation.  For example, imagine a statute that allows tenants to withhold rent upon the discovery of “rats, mice, termites, or other pests.”  The ejusdem generis (“of the same kind”) canon teaches that “other pests” refers to pests of the same kind as those listed before it; thus, a tenant could not withhold rent due to an annoying next-door neighbor who could also be described as a “pest” in the dictionary sense of the word.

This formulation seems to imply a rational, objective process of decision-making: judges confronted with an ambiguous statute resolve that ambiguity by selecting the applicable principle (i.e. canon), applying it to the statute, and, voila, a resolution emerges (ambiguity -> principle -> answer).  Llewellyn, however, like Knowles and Ditto, is not quite so optimistic about the decision-making process.  Llewellyn argues that there are two opposing canons on almost every point, and as such, the canons serve as (in the words of Knowles and Ditto) post hoc intellectual justifications of one’s initial intuitions. Choosing which canon to apply is not the objective, detached process that the above description would suggest.  Instead, judges determine the answer first, guided by their internal preferences, and then select the canon capable of justifying the conclusion they find most emotionally satisfying (ambiguity -> answer -> principle).

More analysis and implications of this theory, right after the jump.

Continue reading

Born To Kill?

2 Feb

On December 15, 1989, Chester Dean Dyer’s mutilated body was found inside his Phoenix apartment.  Jeffrey Landrigan (pictured) was later convicted by an Arizona jury of several direct criminal acts relative to Dyer’s death, including counts of theft, second-degree burglary, and felony murder.  Landrigan appealed his capital sentence by arguing that there was a genetic basis to his crime.  Could it be that he was born to kill?

There are biological and social risk factors that Landrigan argues made violence an inevitable outcome. Although he first did not wish to address these as mitigating factors for his punishment, he asked judges to reconsider the aspects of his background that put him at risk for committing the crime.  Landrigan was adopted when he was nine months old and never knew his biological parents.  However, on his biological side, there are at least four generations of males implicated in violent crime. His biological father, Darrell Hill, was also on death row for murder when Hill passed away. Continue reading

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